Opinion of the Court by
Defendant-appellant Jerome Rogan appeals from the circuit court’s judgment, guilty conviction and sentence, and notice of entry filed on August 26,1998. A jury found Rogan guilty of four counts of sexual assault in the third degree, in violation of Hawaii Revised Statutes (HRS) § 707-732(l)(b) (1993). 1 On appeal, Rogan contends that: (1) the circuit court erred in failing to grant his motion for mistrial based on prosecutorial misconduct; and (2) HRS eh. 846E violates various protections afforded by the United States and Hawaii Constitutions. For the reasons discussed below, we agree with Ro-gan’s first point of error and further hold that reprosecution of Rogan is barred by the double jeopardy clause of article I, section 10 of the Hawaii Constitution. Accordingly, we reverse Rogan’s conviction.
*409 I. BACKGROUND
On May 15, 1997, Rogan was charged with three counts of sexual assault in the first degree (Counts I, II, and IV), in violation of Hawai'i Revised Statutes (HRS) § 707-730(l)(b) (1993), 2 and five counts of sexual assault in the third degree (Counts V to IX). 3
At trial, the principal witnesses were the Complainant and Rogan. The Complainant, who was twelve years old at the time of the alleged offenses, testified that Rogan had been making telephone calls to her house. Although she had never met Rogan, the Complainant started to talk to Rogan over the phone. During the course of one of their conversations, Rogan asked the Complainant if he could go to her house. After the Complainant agreed, Rogan told the Complainant to call him when her mother left the house, and he gave her his pager number. On September 13, 1995, after the Complainant’s mother left the house, the Complainant summoned Rogan to her house by calling Ro-gan’s pager.
The Complainant further testified that when Rogan arrived, she allowed Rogan to enter her home. At that time, the Complainant was wearing a one-piece bathing suit, a tank top, and a pair of shorts. After talking for a while, Rogan and the Complainant went into the Complainant’s sister’s bedroom to listen to music. According to the Complainant, Rogan told her that he had a belly button ring, but when he took off his shirt, he did not have one.
Thereafter, the Complainant and Rogan turned on some music and started dancing. According to the Complainant, Rogan placed his hand on her buttocks and squeezed as they were dancing. After they finished dancing, Rogan put the Complainant on the bed and touched the Complainant’s breast with his hand, body, and mouth. The Complainant also stated that he touched her vaginal area with his hand and tried to put his penis and his finger “into it.” The Complainant further stated that he turned her over and started either to lick or insert his finger into her anus. The Complainant explained that Rogan had removed her shorts, but she was still wearing her bathing suit. The Complainant further explained that Rogan moved her bathing suit aside.
The Complainant also testified that Rogan put her hand on his penis. She stated that she told him she was not going to have sex with him and that, at one point, he said “Come on, baby.” The Complainant stated that he stopped touching her when her mother entered the room. Immediately thereafter, Rogan put on his clothes and pushed her mother as he ran out the door.
On cross-examination, the Complainant admitted that one of the rules at her house was that she could not have visitors to the house while she was alone. The Complainant stated that, against her parents’ wishes and the house rules, she summoned Rogan, told him the address, gave him directions to the house, and let him in. She also stated that someone had been calling her house for two or three months asking for someone named Monica, but her parents hung up on these calls. Two nights before the incident, however, the Complainant received a call from a person asking for Monica and decided to talk to that person. At that time, the Complainant’s mother instructed the Complainant to terminate the call, but she did not do so until her mother reached over and hung up the phone for her.
On September 13, 1995, the night of the incident, the Complainant received another phone call from a person asking for Monica *410 and thereafter proceeded to have a full conversation with that person. The Complainant told him that her mother was not going to be home. When Rogan asked to see the Complainant, the Complainant agreed. The Complainant stated that he told her he was in the military, was twenty-one years old, was stationed at Fort Shatter, was from Mississippi, and was black.
The Complainant then stated that she talked to a friend named Shawn on the phone while Rogan was with her and that Rogan even spoke to Shawn. The Complainant also said that her friend Jeanie called while Ro-gan was there, that Jeanie knew she had a male friend over, and that she did not tell Jeanie she was in any kind of trouble.
The Complainant further admitted that she gave Rogan a “hickey” and that it was not in response to a request for a hickey. The Complainant stated that, throughout the incident, she did not scream for help and that Rogan never threatened to hurt her, her family, or her friends.
The Complainant also testified that hеr mother was upset by the incident and that her stepfather was very angry. The Complainant admitted that her parents are “kind of strict” and that she knew her parents would be “disappointed” in her and her behavior. The Complainant stated that her parents wanted to see Rogan convicted, but that she did not want to testify. The Complainant also admitted that although she stated she did not want to testify, her parents told her that Rogan’s conviction depended on her testimony. The Complainant denied telling Rogan she was seventeen years old or that she was a senior in high school.
Thereafter, Rogan testified on his own behalf. Rogan stated that he was a soldier in the United States Army and that he had arrived in Hawai'i on August 23, 1995 — only two or three weeks before the incident on September 13, 1995. At the time of the incident, Rogan was twenty-two years old and was living at Fort Shatter. On the evening of September 13,1995, Rogan was in a room occupied by a fellow soldier, Ethan Joe. When Joe received a page, Joe asked Rogan to call the number on the pager and to tell the female who answered that he would pick her up later. The female was supposedly named Monica.
When Rogan called the number as a favor to Joe, the female answering the telephone informed him that there was no one named Monica there but asked where he was from and began a casual conversation with him. During the course of the conversation, Rogan told her his age and that he was in the military. The Complainant then told him that she was seventeen years old, was a singer, was going to go to Honolulu Community College, and was going to take a year off to relax. Thereafter, the Complainant told Rogan that her parents would be gone for part of the evening and that it was okay if he wanted to go to her house. The Complainant said she would call him back and let him know the time to come over.
Later that night, the Complainant called Rogan’s pager. When Rogan returned the Complainant’s page, the Complainant gave him a specific time he could meet her at her house. Rogan stated that he did not find it unusual that the Complainant was going to let him meet her at her house only when her parents were gone. Rogan explained that the parents of the female he previously dated objected because he was African-American.
When Rogan arrived at the Complainant’s house, the Complainant invited him in. After talking and watching television for a few minutes, the Complainant suggested that they go into thе bedroom. While in the bedroom, Rogan asked the Complainant to dance. While they were dancing, the Complainant started kissing his neck. After Ro-gan picked her up and placed her on the bed, the Complainant pulled Rogan’s shirt over his head. The Complainant continued to kiss Rogan’s neck. Rogan then said, “Come on, you want to do it?” The Complainant responded, “No, I’m not having sex with you.” Rogan thought the Complainant was not serious because she was laughing and continued to kiss his neck.
Rogan removed the Complainant’s shorts, but did not remove the Complainant’s bathing suit. Meanwhile, the Complainant continued to kiss Rogan and gave Rogan two or three hickeys on his neck. Because Rogan *411 thought the Complainant wanted to have sex with him, he pulled his pants down, took out his penis and asked if he could “put it in.” In response, the Complainant said, “No, I’m not going to have sex with you,” and laughed. Rogan again said, “Come on, let me put it in.” The Complainant then shoved Rogan back and said, “Pull your damn pants up, I told you we’re not going to have sex,” and laughed. Rogan then pulled his pants up, and the Complainant put her shorts back on.
Rogan testified that he did not touch the Complainant in the vaginal area with his hand, did not put his finger in her hymenal orifice, and did not insert a finger into her vagina. Rogan stated that he did not penetrate the Complainant’s anus with his finger, penis, or tongue. Rogan also stated that he did not penetrate the Complainant’s vagina with his penis or finger. Rogan also testified that the Complainant looked like she was seventeen years old at the time of the incident and that the girl he previously dated, who was twenty years old, looked younger than the Complainant.
Eventually, the Complainant’s mother opened the door to the bedroom. Upon doing so, the Complainant’s mother was “real shocked” and started “going crazy and [the Complainant] started going crazy, saying, I’m sorry, I’m sorry, I’m sorry.” Immediately thereafter, Rogan put his clothes back on and tried to exit. While trying to exit, Ro-gan bumped the Complainant’s mother.
Thereafter, the prosecution and defense delivered closing arguments. During the prosecution’s rebuttal argument, the deputy prosecutor stated in relevant part that finding “some black, military guy on top of your daughter” is “every mother’s nightmare.” Defense counsel objected on the ground that the comment constituted an appeal to racism, but the trial court overruled the defense objection.
After the jury was excused for its deliberations, defense counsel moved for a mistrial based on the prosecution’s appeal to racial prejudice. The deputy prosecutor stated that he had not intended to inflame the jury and apologized to Rogan. The circuit court denied the motion.
The jury later found Rogan not guilty as to Count II, guilty as to Counts V and VIII, guilty of lesser included offenses as to Counts I and IV, and could not reach a verdict as to Counts VI, VII, and IX. In sum, Rogan was found guilty of four counts of sexual assault in the third degree.
Rogan was sentenced to five years of probation, fifty days of incarceration with credit for time served, a fee of $400 payable to the Criminal Injuries Compensation Commission, sex offender treatment, and various other terms and conditions of probation. At sentencing, defense counsel objected to the application of the sex offender registration law to Rogan, but the circuit court ruled that Rogan was required to register by statute. Thereafter, Rogan filed a timely notice of appeal.
II. STANDARDS OF REVIEW
A. Prosecutorial Misconduct
The denial of a motion for mistrial is within the sound discretion of the trial court and will not be upset absent a clear abuse of discretion.
State v. Loa,
B. Constitutional Law — Double Jeopardy
The issue whether a reprosecution is barred by double jeopardy is a question of constitutional law. We review questions of constitutional law “by exercising our own independent constitutional judgment based on the facts of the case.”
State v. Arceo,
III. DISCUSSION
A. Prosecutorial Misconduct
In his first point of error, Rogan asserts that the circuit court erred in failing to grant his motion for mistrial based upon prosecuto-rial misconduct. Rogan maintains that the following comment made during the prosecution’s rebuttal argument constituted prosecu-torial misconduct:
[Deputy prosecutor:] There was one thing [that defense counsel mentioned] about, you know, it was the parents who wanted the conviction and somehow she was coached. Yeah, you can bet the parents wanted a conviction. This is every mother’s nightmare. Leave your daughter for an hour and a half, and you walk back in, and here’s some black, military guy on top of your daughter. That’s what she’s saying....
[Defense Counsel]: Objection, your Honor. This is an appeal to racism.
THE COURT: Overruled.
We have previously stated:
Allegations of prosecutorial misconduct are reviewed under the harmless beyond a reasonable doubt standard, which requires an examination of the record and a determination of “whether therе is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Balisbisana,83 Hawai'i 109 , 114,924 P.2d 1215 , 1220 (1996) (quoting State v. Holbron,80 Hawai'i 27 , 32,904 P.2d 912 , 917, reconsideration denied,80 Hawai'i 187 ,907 P.2d 773 (1995)) (citations and internal quotation marks omitted); see also State v. Sanchez,82 Hawai'i 517 , 528,923 P.2d 934 , 945 (App.), cert. denied,84 Hawai'i 127 ,930 P.2d 1015 (1996) (citation omitted). Factors to consider are: (1) the nature of the conduct; (2) the promptness of a curative instruction; and (3) the strength or weakness of the evidence against the defendant. State v. Samuel,74 Haw. 141 , 148,838 P.2d 1374 , 1378 (1992) (citation omitted).
State v. Sawyer,
1. The Nature of the Alleged Misconduct
In this case, Rogan contends that the deputy prosecutor’s statement that it is “every mother’s nightmare [to find] ... some black, military guy on top of your daughter” constituted an impermissible appeal to racial prejudice. We agree.
a. The Role of the Prosecution
This court has repeatedly noted that “[t]he prosecution has a duty to seek justice, to exercise the highest good faith in the interest of the public and to avoid even the appearance of unfair advantage over the accused.”
Quitog,
With regard to the prosecution’s closing argument, a prosecutor is “permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence. It is also within the bounds of legitimate argument for prosecutors to state, discuss, and comment on the evidence as well as to draw all reasonable inferences from the evidence.”
Quitog,
“In closing argument to the jury, the prosecutor may argue all reasonable inferences from evidence in the record. The prosecutor should not intentionally misstate the evidence or mislead the jury as to the inferences it may draw.” The commentary on Standard 3-5.8 aptly emphasizes:
The prosecutor’s argument is likely to have significant persuasive force with the jury. Accordingly, the scope of argument must be consistent with the evidence and marked by the fairness that should characterize all of the prosecutor’s conduct. Prosecutorial conduct in argument is a matter of spеcial concern because of the possibility that the jury will give special weight to the prosecutor’s arguments, not only because of the prestige associated with the prosecutor’s office, but also because of the fact-finding facilities presumably available to the office.
b. Appeals to Racial Prejudice During Closing Argument
Given these principles, we now focus on appeals to racial prejudice during closing argument. ABA Prosecution Function Standard 3-5.8(c) (3d ed.1993) states in relevant part that prosecutors “should not use arguments calculated to inflame the passions or prejudices of the jury.” The 1979 commentary to that section states:
Arguments that rely on racial, religious, ethnic, political, economic, or other prejudices of the jurors introduce into the trial elements of irrelevance and irrationality that cannot be tolerated. Of course, the mere mention of the status of the accused as shown by the record may not be improper if it has a legitimate bearing on some issue in the case, such as identification by race. But where the jury’s predisposition against some particular segment of society is exploited to stigmatize the accused or the accused witnesses, such argument clearly trespasses the bounds of reasonable inference of fair comment on the evidence. Accordingly, many courts have denounced such appeals to prejudice as inconsistent with the requirement that the defendant be judged solely on the evidence.
(Emphasis added.)
Similarly, courts throughout the country have consistently condemned appeals to racial prejudice during closing argument.
See, e.g., United States v. Cannon,
*414 Federal courts have long condemned racially inflammatory remarks during governmental summation.... Racial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justice. Appeals to racial passion can distort the search for the truth and drastically affect a juror’s impartiality.
We speak of course, only of racial comments beyond the pale of legally acceptable modes of proof. An unembellished reference to evidence of race simply as a factor bolstering an eyewitness identification of a culprit, for example, poses no threat to purity of the trial. The line of demarcation is crossed, however, when the argument shifts its emphasis from evidence to emotion.
United States v. Doe,
c. The Alleged Impermissible Appeal to Racial Prejudice
In this case, the deputy prosecutor’s reference to Rogan as a “black, military guy” was clearly inflammatory inasmuch as it raised the issue of and cast attention to Rogan’s race. Because there was no dispute as to the identity of the perpetrator in this case, Ro-gan’s race was not a legitimate area of inquiry inasmuch as race was irrelevant to the determination of whether Rogan committed the acts charged. The prosecution concedes that the deputy prosecutor’s comment was “ill-advised.” Indeed, the deputy prosecutor’s comment had the potential of distracting the jury from considering only the evidence presented at trial. It is therefore inescapable that the deputy prosecutor’s reference to Rogan as a “black, military guy” was an improper emotional appeal that could foreseeably have inflamed the jury.
The deputy prosecutor’s inflammatory reference to Rogan’s race was further compounded by the statement that the incident was “every mother’s nightmare,” which was a blatantly improper plea to evoke sympathy for the Complainant’s mother and represented an implied invitation to the jury to put themselves in her position. Like the deputy prosecutor’s reference to Rogan’s race, the “every mother’s nightmare” comment was not relevant for purposes of considering whether Rogan committed the acts charged.
In response, the prosecution argues that the deputy prosecutor’s comments were in rebuttal to defense counsel’s closing argument that it was the Complainant’s parents alone who wanted Rogan convicted. We disagree. As Rogan argues, the deputy prosecutor’s comments do not rebut defense counsel’s argument that it was the Complainant’s parents alone who wanted Rogan convicted. Instead, the deputy prosecutor’s comment that finding “some black, military guy on top of your daughter” is “every mother’s nightmare” supports the theory that it was the Complainant’s parents alone who wanted Ro-gan convicted. Indeed, the deputy prosecutor said, “Yeah, you can bet the parents wanted a conviction.” Under these circumstances, we cannot excuse the deputy prosecutor’s reference to Rogan as “some black, military guy” on the basis that the comment was made to rebut the defense counsel’s theory that it was the Complainant’s parents alone who wanted Rogan convicted.
In light of the foregoing, we note that arguments by the prosecution contrived to stimulate racial prejudice represent a brazen attempt to subvert a criminal defendant’s right to trial by an impartial jury as guaranteed by both the sixth amendment to the United States Constitution and article I, section 14 of the Hawai'i Constitution. Such arguments foster jury bias through racial stereotypes and group predilections, thereby promoting an atmosphere that is inimical to the consideration of the evidence adduced at trial. Moreover, such an appeal to racial prejudice threatens our multicultural society and constitutional values. We must therefore recognize that “[o]ur government is the potent, the omnipresent teacher. For good
*415
or for ill, it teaches the whole people by its example.”
Olmstead v. United States,
2. The Promptness of a Curative Instruction
With regard to the second factor in determining prosecutorial misconduct, we have previously stated that “a proseсutor’s improper remarks are [generally] considered cured by the court’s instructions to the jury, because it is presumed that the jury abided by the court’s admonition to disregard the statement.”
State v. McGriff,
3. The Strength/Weakness of the Evidence
With regard to the third factor in determining рrosecutorial misconduct, this case essentially turned on the credibility of two witnesses — the Complainant and Rogan. There were no independent eyewitnesses or conclusive forensic evidence in this case. Instead, the prosecution’s case against Rogan depended heavily on the Complainant’s testimony. Given that Rogan denied having committed any of the acts for which he was charged, 4 this case was based on the Complainant’s version of the events against Ro-gan’s version. Under these circumstances, we cannot say that the evidence of criminal conduct against Rogan was overwhelming.
In contrast to the instant case, the evidence against the defendant in
Ganal
was overwhelming. In
Ganal,
we held that despite Ganal’s challenge to fourteen portions of the prosecution’s closing argument, the prosecution’s remarks did not constitute error in light of the overwhelming “strength of the case against Ganal[.]”
Given that all three factors discussed above weigh heavily against the prosecution in this case, we cannot conclude that the prosecution’s remark that finding “some black, military guy on top of your daughter” is “every mother’s nightmare” was harmless *416 beyond a reasonable doubt. Because there is a reasonable possibility that the deputy prosecutor’s comment during closing argument might have contributed to Rogan’s conviction, we hold that the deputy prosecutor’s comment constituted prosecutorial misconduct that denied Rogan his right to a fair trial.
B. Double Jeopardy
In light of our holding with regard to prosecutorial misconduct, the question remains whether the double jeopardy clause of the Hawaii Constitution bars a retrial of Rogan. We therefore consider the issue whether a retrial is barred by the double jeopardy clause of the Hawaii Constitution after a finding of prosecutorial misconduct denying a defendant’s right to a fair trial. 5 In doing so, we take this opportunity to review the extent to which the double jeopardy clauses of the United States and Hawaii Constitutions impose limitations on the discretionary exercise of prosecutorial power.
1. Interests Underlying the Double Jeopardy Clause
The double jeopardy clause of the fifth amendment to the United States Constitution, made applicable to the states through the fourteenth amendment, guarantees that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb[.]” Similarly, article I, section 10 of the Hawaii Constitution provides in relevant part that “nor shall any person be subject for the same offense to be twice put in jeopardy[.]”
Based upon these provisions, we have long recognized “that there are three separate and distinct aspects to the protections offered by the double jeopardy clause. ‘Double jeopardy protects individuals against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.’”
Whiting,
a. The Interests of Criminal Defendants
Traditionally, the double jeopardy clause has been viewed as safeguarding three interests of defendants: (1) the interest in being free frоm successive prosecutions; (2) the interest in the finality of judgments; and (3) the interest in having the trial completed in front of the first tribunal.
See
Rick A. Bierschbach, Note,
One Bite at the Apple: Reversals of Convictions Tainted by Prose-cutorial Misconduct and the Ban of Double Jeopardy,
94 Mich. L.Rev. 1346, 1348-49 (1996). With regard to a defendant’s interest in restricting the prosecution to a single attempt to prove his or her guilt at trial, the United States Supreme Court has offered two fundamental bases. First, multiple prosecutions seriously disrupt a defendant’s personal life during trial and create a potential for governmental harassment of the defendant.
See Arizona v. Washington,
Similarly, the interest in the finality of judgments contemplates “the importance to the defendant of being able, once and for all, to conclude his confrontаtion with society.”
United States v. Jorn,
b. The Interests of Society
Balanced against the defendant’s interests is society’s need for effective enforcement of its criminal laws.
See, e.g., Lockhart v. Nelson, 488 U.S.
33, 38,
c. The Double Jeopardy Clause As a Limit on Prosecutorial Power
Having set forth the competing interests underlying double jeopardy, we now consider the effect of the double jeopardy clause on prosecutorial power. We have repeatedly recognized the following purpose of the double jeopardy clause:
the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him [or her] to embarrassment, expense and ordeal and compelling him [or her] to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he [or she] may be found guilty.
Whiting,
Indeed, the prosecution wields great discretion
in the decision to charge and what to charge; in the control of vast governmental resources in investigating and preparing a case; in the plea bargaining process for the majority of cases that are resolved without trial; and in the deference and authority the prosecution commands before juries in those cases that are tried to a conclusion.
Kenneth Rosenthal,
Prosecutor Misconduct, Convictions, and Double Jeopardy: Case Studies in an Emerging Jurisprudence,
71
*418
Temp. L.Rev. 887 (1998) (footnote omitted).
6
The double jeopardy clause addresses this reality by imposing a potential constitutional bar to reprosecution where there is egregious misconduct on the part of the prosecution. In this connection, we have held “that retrial is barred where ‘the defendant’s mistrial motion is the necessary response to ... prosecutorial misconduct designed to avoid an acquittal, or is necessitated by deliberate misconduct which has for its intended purpose the denial of the defendant’s constitutional right to a fair trial[.]’ ”
State v. Baranco,
The juxtaposition of the prosecution’s great discretion and the substantial interests of the defendant, who bears the brunt of the prosecution’s exercise of its power, gives rise to the special standards of conduct discussed fully in Section III.A.1. above. As discussed, the prosecution’s primary duty is not merely to seek a conviction.
See Donnelly,
2. The Current Double Jeopardy Balance: The Double Jeopardy Bar After a Mistrial or Reversal of a Conviction as a Result of Prosecutorial Misconduct
Given the tension between the competing interests of the defendant and society with regard to the double jeopardy clause, we now review various approaches that have attempted to effectuate a workable limitation on prosecutorial discretion.
a. The United States Supreme Court— The Specific Intent Test
In
Kennedy,
the United States Supreme Court held that the double jeopardy clause of the fifth amendment to the United States Constitution does not bar a subsequent re-prosecution unless the prosecution acted with the specific intent to cause the defendant to move for a mistrial.
Prosecutor: Have you ever done business with the Kennedys?
Witness: No, I have not.
Prosecutor: Is that because he is a crook?
Id. (emphasis added). The trial court then granted Kennedy’s motion for a mistrial, but found that it was not the intention of the prosecution to cause a mistrial. Id. (citation omitted).
On appeal, the Oregon Court of Appeals applied the rule that “retrial is barred where the error that prompted the mistrial is intended to provoke a mistrial or is ‘motivated by bad faith or undertaken to harass or prejudice’ the defendant.”
Id.
at 670,
On certiorari to the United States Supreme Court, a plurality of the Court chose not to concentrate on the egregiousness of the prosecution’s overall conduct at trial, focusing instead on the prosecutor’s subjective intent.
Id.
at 675-76,
In a concurring opinion authored by Justice Stevens, four justices disagreed with the plurality,
7
contending that the specific intent test would make it nearly impossible for a defendant to prove that the prosecutor intended by deliberate misconduct to provoke a mistrial and not merely to prejudice the defendant.
Id.
at 688,
[t]here are other situations in which the defendant’s double jeopardy interests outweigh society’s interest in obtaining a judgment on the merits even though the defendant has moved for a mistrial. For example, a prosecutor may be interested in putting the defendant through the embarrassment, expense, and ordeal of criminal proceedings even if he cannot obtain a conviction. In such a ease, with the purpose of harassing the defendant the prosecutor may commit repeated prejudicial errors and be indifferent between a mistrial or mistrials and an unsustainable conviction or convictions. Another example is when the prosecutor seeks to inject enough unfair prejudice into the trial to ensure a conviction but not so much as to cause a reversal of that conviction. This kind of overreaching would not be covered by the Court’s standard because, by hypothesis, the prosecutor’s intent is to obtain a conviction, not to provoke a mistrial. Yet the defendant’s choice — to continue the tainted proceeding or to abort it and begin anew— can be just as “hollow” in this situation as when the prosecutor intends to provoke a mistrial.
To invoke the exception for overreaching, a court need not divine the exact *420 motivation for the prosecutorial error. It is sufficient that the cowit is persuaded that egregious prosecutorial misconduct has rendered unmeaningful the defendant’s choice to continue or to abort the proceeding.
Id.
at 689,
b. Extension of the Double Jeopardy Clause Protection
Recognizing the inadequacy of the specific intent test set forth in
Kennedy
in ensuring double jeopardy protection against retrial as a result of prosecutorial misconduct, a growing number of jurisdictions have rejected the
Kennedy
standard and have shifted the focus of inquiry away from the prosecution’s specific intent. Following the reasoning of Justice Stevens’s concurring opinion, these courts have recognized that overreaching by the prosecution can sometimes justify a double jeopardy bar to a subsequent reprosecution even without the prosecutor’s specific intent to cause a mistrial with the purpose of obtaining a more favorable opportunity to secure a conviction.
See, e.g., State v. Kennedy,
For example, in
Commonwealth v. Smith,
On appeal, the Smith court chаracterized the prosecution’s behavior as an effort “to subvert the truth-determining process[,]” but found that there was no intent to goad the defendant into moving for a mistrial. Id. at 322 (citation omitted). In fact, the prosecution’s intention was to prevent the defendant from moving for a mistrial by concealing how he had been wrongfully convicted. The Smith court reasoned that the specific intent standard would not bar a new trial even where there was a deliberate effort to prejudice a defendant’s right to a fair trial. Therefore, the court held, under the Pennsylvania Constitution, that a retrial is barred
not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.
Id. at 325 (emphasis added).
Similarly, the Arizona Supreme Court adopted a more encompassing standard for the double jeopardy clause of its state constitution than the federal
Kennedy
standard where the prosecution in
Pool
posed numerous improper questions resulting in at least two bench conferences and one court admonishment.
Pool v. Superior Court,
1. Mistrial is granted because of improper conduct or actions by the prosecutor; and
2. such conduct is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial, and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial or reversal; and
3. the conduct causes prejudice to the defendant which cannot be cured by means short of a mistrial.
Id. at 271-72 (footnote omitted). In doing so, the court abandoned the subjective intent standard and adopted an objective standard, noting that
[t]he trial judge is to measure what the prosecutor “intends” and “knows” by objective factors, which include the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion. He [or she] may also consider the prosecutor’s own explanations of his [or her] “knowledge” and “intent” to the extent that such explanation can be given credence in light of the minimum requirements expectеd of all lawyers.
Id. at 271 n. 9 (emphasis and brackets added). Applying this standard, the Pool court concluded that reprosecution was barred. Id. at 272.
Adopting a similar objective standard, the Texas Court of Criminal Appeals likewise rejected the
Kennedy
“subjective intent” standard.
Bauder v. State,
a successive prosecution is jeopardy barred after declaration of a mistrial at the defendant’s request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial, but also when the prosecutor was aware but consciously disregarded the risk that an objectiоnable event for which he was responsible would require a mistrial at the defendant’s request.
Bauder II,
The New Mexico Supreme Court adopted a similar conscious disregard standard in
State v. Breit,
when improper conduct is so unfairly prejudicial to the defendant that it cannot be cured by means short of a mistrial or a motion for a new trial, and if the official knows that the conduct is improper and prejudicial, and if the official either intends to provoke a mistrial or acts in willful disregard of the resulting mistrial, retrial, or reversal.
Id. at 803 (emphasis added). The Breit court emphasized that the “willful disregard” standard contemplates situations where
the prosecutor is actually aware, or is presumed to be aware, of the potential consequences of his or her actions. The term connotes a conscious and purposeful deci *422 sion by the prosecutor to dismiss any concern that his or her conduct may lead to a mistrial or reversal.
Id. (citation omitted). The Breit court further noted:
Though we indicate the official must know, or under certain circumstances is presumed to know, that the conduct is improper, we doubt a claim of lack of experience could lift the bar of double jeopardy. Rare are the instances of misconduct that are not violations of rules that every legal professional, no matter how inexperienced, is charged with knowing.
Id.
(emphasis added) (citing
Pool,
3. The Inadequacy of the Specific Intent Standard
We agree with the reasoning and analysis of the New Mexico Supreme Court in
Breit
and the Texas Court of Criminal Appeals in
Bauder II.
In our view, the specific intent standard does not adequately afford criminal defendants protection fi-om prosecu-torial misconduct. Indeed, “to be meaningful, the protection against double jeopardy must be analyzed with an objective standard.”
Bauder I,
As Justice Stevens aptly observed in Kennedy,
[i]t is almost inconceivable that a defendant could prove that the prosecutor’s deliberate misconduct was motivated by an intent to provoke a mistrial instead of an intent simply to prejudice the defendant. The defendant must shoulder a strong burden to establish a bar to reprosecution when he has consented to the mistrial, but the Court’s subjective intent standard would eviscerate the exception [to the general rule that a retrial after reversal on appeal is not barred by double jeopаrdy].
Kennedy,
Moreover, the prosecutor’s subjective intent is irrelevant for purposes of determining a defendant’s constitutional double jeopardy rights. As one commentator has stated,
regardless of the prosecutorial motive, the defendant suffers severe deprivation of his rights. Constitutional rights are to be protected irrespective of the motive or intent of the actor whose conduct has occasioned an infringement of them[.]
James F. Ponsoldt, When Guilt Should Be Irrelevant: Government Overreaching as a Bar to Reprosecution Under the Double Jeopardy Clause After Oregon v. Kennedy, 69 Cornell L.Rev. 76, 98 (1983) (quoting Comment, Double Jeopardy and Reprosecution After Mistrial: Is the Manifest Necessi *423 ty Test Manifestly Necessary?, 69 Nw. U.L.Rev. 887, 888 (1975)). The Kennedy test therefore misdirects the focus of the double jeopardy protections on the harboring of bad intentions as opposed to the prevention of unacceptable behavior by the prosecution.
Finally, we are mindful of the fact that when egregious prosecutorial misconduct results in a reprosecution either by mistrial or a reversal on appeal, the burden of another trial cannot be attributed to defendant’s preference to start anew rather than to complete the trial before the original tribunal. On the contrary, the burden of retrial in such a case is attributable to the prosecution’s misconduct or overreaching, though perhaps not specific intent, designed to force the defendant to such a choice. See
Green v. United States,
Given the inadequacy of the specific intent standard adopted by the United States Supreme Court in
Kennedy,
we take this opportunity, “as the ultimate judicial tribunal with final unreviewable authority to interpret and enforce the Hawaii Constitution,” to “give broader protection under the Hawaii Constitution than that given by the federal constitution.”
See, e.g., State v. Hoey,
Our holding is consistent with our previous interpretations of the double jeopardy clause of the Hawaii Constitution. We have often interpreted our double jeopardy clause to provide broader protections than the double jeopardy clause of the fifth amendment to the United States Constitution where the federal interpretation did not adequately preserve the rights and interests sought to be protected.
See State v. Jumila,
4. Rogan’s Double Jeopardy Interests
Turning to the facts of the instant case, wе note the egregiousness of the deputy prosecutor’s misconduct. As discussed above, the deputy prosecutor’s remarks that it was “every mother’s nightmare” to find “some black, military guy on top of your daughter” was an appeal to racial prejudice that had no objectively legitimate purpose. Given that such a comment would likely arouse a jury s possible predisposition against some particular segment of society so as to stigmatize Rogan, the deputy prosecutor’s comment constituted a particularly egregious form of prosecutorial misconduct. Inasmuch as “[rjacial fairness of the trial is an indispensable ingredient of due process and racial equality a hallmark of justiee[,]”
Doe,
IV. CONCLUSION
For the reasons discussed above, we reverse the circuit court’s judgment, guilty conviction and sentence, and notice of entry filed on August 26,1998. 13
Notes
. HRS § 707-732(l)(b) provides in relevant part that "[a] person commits the offense of sexual assault in the third degree if ... [t]he person knowingly subjects to sexual contact another person who is less than fourteen years old or causes such a person to have sexual contact with the person[.]”
. HRS § 707-730(l)(b) provides in relevant part that “[a] person commits the offense of sexual assault in the first degree if ... [t]he person knowingly subjects to sexual penetration another person who is less than fourteen years old[J”
. Count I alleged penile penetration of the Complainant’s vagina. Count II alleged anal penetration. The grand jury found “no bill” with regard to Count III, thereby refusing to indict Rogan for this count. Count IV alleged digital penetration of the Complainant’s vagina. Count V alleged manual cоntact with the Complainant’s vagina. Count VI alleged that Rogan caused the Complainant to have manual contact with his penis. Count VII alleged manual contact with the Complainant's breast. Count VIII alleged manual contact with her buttock. Count IX alleged oral contact with her breast. All eight counts were also based on the allegation that the Complainant was less than 14 years old. Rogan denied all of these allegations at trial.
. See supra note 3 for the specific allegations in the complaint. As noted, Rogan denied all of the allegations in the complaint at trial.
. We have previously touched upon the issue whether a retrial is barred by the double jeopardy principles after a finding of prosecutorial misconduct in the context of a request for mistrial.
See State v. Ake,
. Some of the extensive privileges and resources available to the prosecution include:
exclusive possession of the case file, including all information from the investigative stage during which the government has sole control of the crime scene; immediate, ex parte access to police reports and statements of witnesses, little to none of which can be even belatedly accessed by the defense through pretrial interrogatories or depositions as in civil cases; assistance of local, state, and federal law enforcement personnel and other government agencies; forensic facilities and expertise; grand jury investigation and subpoena power; the right to offer witnesses immunity and monetary rewards contingent upon cooperation— actions that would constitute ethical violations and criminal offenses if utilized by defense attorneys; additional leverage through control (in concert with a nationwide network of collaborating prosecutors and law enforcement personnel) over the charging and plea bargaining stages that affect the fates of thousands of individuals caught up in the criminal justice system. Additionally, and arguably most important of all, in cases that go to trial, the prosecutor commands special respect (unavailable to any other lawyer) by virtue of the office hе holds and the "client” he represents; he speaks with, and as, an authority; he exerts great influence on the jurors (and trial judges) and hence on the ultimate outcome.
Rosenthal, supra at 896-97 (footnotes omitted).
. The plurality opinion, authored by Justice Rehnquist, was joined by three other justices. Justice Powell filed his own concurring opinion, but acknowledged that "the
intention
of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of the defendant under the Double Jeopardy Clause.”
Kennedy,
. As the dissent in Bauder I noted:
The obvious difficulty with the Kennedy standard is that it requires ... [a court to] “look at the prosecutor’s actions under the circumstances and try to guess what he was thinking.’’ A fundamental right should not be left dangling from such a tenuous thread.... If double jeopardy is to mean anything ..., appellate courts must be able to analyze the salient issues from the objective facts in the record.... If we cannot conclude from the objective facts in the record whether double jeopardy rights have been protected, then it is time to breathe life into the double jeopardy clause of the Texas Constitution and craft a standard more "free from practical difficulty” that will protect our citizens from governmental overreaching.
Bauder I,
. As one commentator noted: “In the sixteen years since
Kennedy
was decided, there appear to be only two reported instances in which the
Kennedy
intent criterion has afforded a remedy for even the most egregious misconduct."
Ro-senthal, supra
at 910 (citing
Beck v. State,
. We note that this standard is, in effect, the logical extension of our previous holdings in
Baranco,
. We note and emphasize that the standard adopted for purposes of determining whether double jeopardy principles bar a retrial caused by prosecutorial misconduct requires a much higher standard than that used to determine whether a defendant is entitled to a new trial as a result of prosecutorial misconduct. Double jeopardy principles will bar reprosecution that is caused by prosecutorial misconduct only where there is a highly prejudicial error affecting a defendant’s right to a fair trial and will be applied only in exceptional circumstances such as the instant case. By contrast, prosecutorial misconduct will entitle the defendant to a
new trial
where there is a reasonable possibility that the error complained of might have contributed to the conviction”
(i.e.,
the error was not "harmless beyond a reasonable doubt”).
See, e.g., Sawyer,
. As one court noted:
"The factor of racial prejudice has been formally and officially squelched in our society aftеr long and arduous struggles. Where it remains informally, it cannot be condoned. Certainly, then, its use cannot be invoked by counsel in a court of law, without running counter to the Sixth and Fourteenth Amendments’ guarantees.”
Kornegay v. State,
. In his second point of error, Rogan contends that HRS ch. 846E violates various protections afforded by the United States and Hawai'i Constitutions as applied to him. However, because we hold that reprosecution is barred by the double jeopardy clause of the Hawai'i Constitution, Rogan’s contention that HRS ch. 846E, which imposes certain registration and public disclosure requirements on sex offenders (i.e., "Megan's Law"), appears to be moot. Indeed,
the mootness doctrine encompasses the circumstances that destroy the justiciability of a case previously suitable for determination. A case is moot where the question to be determined is abstract and does not rest on existing facts or rights. Thus, the mootness doctrine is *425 properly invoked where events have so affected relations between the parties that the two conditions for justiciability relevant on appeal— adverse interest and effective remedy — have been compromised.
State v. Fukusaku,